Opinion
D059599
09-13-2011
In re DAISY T. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. NJ14378A,B)
APPEAL from orders of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.
T.S. appeals juvenile court orders placing her minor children, Daisy T. and Hector T. (together, the minors) with their father, A.T., and continuing the court's dependency jurisdiction. T.S. contends the court abused its discretion by finding the minors' best interests would be served by placing them with A.T. She also challenges the sufficiency of the evidence to support the court's finding that placing the minors with A.T. would not be detrimental to them. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2010, the San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court alleging T.S.'s husband, Angel P., had physically abused three-year-old Hector, six-year-old Daisy was at substantial risk of harm because of Hector's abuse, and T.S. had failed to protect the minors. (Welf. & Inst. Code, § 300, subds. (b) & (j).)Hector had injuries on his face, buttocks and thigh that were determined to be the result of nonaccidental blunt force trauma. Hector's injuries included a burn on his leg that he said Angel caused. Angel denied physically abusing Hector, claiming the injuries were accidental. T.S. also said the injuries were accidental, and gave varying explanations as to how they occurred. The minors reported T.S. and Angel engaged in domestic violence.
Statutory references are to the Welfare and Institutions Code.
The social worker contacted the minors' father, A.T., who lived in Mexico, to notify him of the proceedings. A.T. and T.S. had raised the minors together until A.T. was deported in December 2009. Following his deportation, A.T. telephoned the minors once a week. During their telephone calls, the minors did not disclose any physical abuse. A.T. asked to be evaluated for placement. T.S. was opposed to the minors living with A.T., and reported she and A.T. engaged in domestic violence when they lived together. When questioned about domestic violence with T.S., A.T. recalled one incident, which involved drinking alcohol, when the police were called but did not intervene.
According to a report prepared for the jurisdiction and disposition hearing, T.S. had enrolled in a domestic violence victims' group and individual therapy. She said she was living separately from Angel. The social worker reported the Mexican social services agency, el Sistema para el Desarrollo Integral de la Familia (DIF), had positively evaluated A.T.'s home in Mexico. A.T. lived with the paternal grandmother and aunt in a three-bedroom house. He owned a bakery which provided him with a steady income. There were schools nearby. A.T. had a good reputation in the community. He was appropriate with the minors during supervised telephone calls and wanted to care for them. Daisy said she wanted to live with A.T. The social worker recommended the court place the minors with A.T. once passports were obtained for them.
The court sustained the allegations of the petitions. T.S. submitted on the social worker's recommendation to remove the minors from her custody and place them in foster care. She did so on the condition she could argue, at a later hearing, that it would be detrimental to the minors to place them with A.T. The court removed the minors from parental custody under section 361, subdivision (c)(1) and said it would not place them with A.T. without first setting a special hearing at which T.S. would have the opportunity to establish detriment.
The minors had been placed with a paternal cousin, who lived very near T.S. Angel was frequently seen at T.S.'s home, and said he was moving out. T.S. was participating in services and having supervised visits with the minors. On more than one occasion, T.S. told Daisy that if Daisy and Hector moved to Mexico, T.S. would die. She also instructed Daisy to say she wanted to live with T.S. T.S. claimed she and Angel had separated, but admitted calling him to help her change a flat tire.
A.T. filed a section 388 petition for modification, asking the court to place the minors with him and terminate jurisdiction. As changed circumstances, the petition alleged DIF had approved A.T.'s home for placement of the minors. As to best interests, the petition alleged placing the minors with him would provide them with permanence. The court ordered an evidentiary hearing on the section 388 petition.
The court authorized the minors to travel to Mexico for a one-week visit with A.T. The minors enjoyed the visit and wanted to stay with A.T. A.T. attended Alcoholic Anonymous (AA) meetings twice a week, located a therapist and a school for the minors, maintained contact with DIF, and telephoned the minors once a week. A.T. agreed he would facilitate visits with T.S. if the minors were placed with him. The social worker continued to recommend the court place the minors with A.T.
T.S. was having supervised visits with the minors twice a week. She helped Daisy with homework when prompted to do so. The minors did not seem interested in visiting T.S. unless she brought toys and snacks.
According to a psychological evaluation, T.S. continued to believe Hector was accidentally bruised while playing with Angel. T.S. used repression and denial as a defense mechanism. The evaluator assessed T.S. as a very dependent person who might have difficulty avoiding relationships with abusive men in the future.
At a hearing on A.T.'s section 388 petition, the court received in evidence Agency's various reports and a letter to T.S. from her therapist praising her for the progress she made in therapy. The court heard the testimony of social worker Glenda Burnett, who recommended placing the minors with A.T. because there were no protective issues. After considering the evidence and arguments of counsel, the court found A.T. had met his burden of showing circumstances had changed and the proposed modification—placing the minors with him—was in the minors' best interests. The court further ruled it was ordering the minors placed with A.T. as a nonoffending, noncustodial parent under section 361.2, subdivision (a), but denied A.T.'s request to terminate jurisdiction, finding that providing further services to the parents was in the minors' best interests.
The court then conducted a six-month review hearing, placed the minors with A.T. and ordered continued services for the parents, including supervised visitation for T.S.
DISCUSSION
I
T.S. contends the court abused its discretion by granting A.T.'s section 388 petition for modification after finding the minors' best interests were served by placing them with A.T. She asserts the minors' stability should not be disrupted to force a relationship with A.T., who had essentially abandoned the minors for more than a year since his deportation. T.S. further asserts that given her "impending reunification" with the minors, the court should have allowed the minors to remain near her instead of placing them "in an uncertain and untested environment in Mexico."
A
Under section 388, a party may petition the court to change, modify or set aside a prior court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change in circumstances or new evidence, and the proposed change would be in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and whether a change would be in the child's best interests are determinations within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences can reasonably be deduced from the facts, we may not substitute our decision for that of the juvenile court. (In re Stephanie M., supra, at pp. 318-319; In re Casey D., supra, at p. 47.)
B
A.T. petitioned under section 388 to modify the court's dispositional order placing the minors in foster care, and sought to have the minors placed with him. A.T. showed his circumstances had changed because his home had been approved for the minors' placement. In ruling on whether A.T. also met his burden of showing the minors' best interests would be served by being placed with him, the court recognized A.T. was a nonoffending, noncustodial parent seeking custody under section 361.2, subdivision (a). Under that provision, the court must place a dependent child with a previously noncustodial parent who requests custody, unless the placement would be detrimental to the child's safety, protection, or physical or emotional well-being. In evaluating detriment, the court weighs all relevant factors, with the overriding consideration being the minor's best interests. (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268; In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)
T.S. does not challenge the court's finding of changed circumstances.
Because the noncustodial parent has both a constitutionally protected interest in custody and a statutory right to custody, there must be clear and convincing evidence of detriment to the child before the court can deny the noncustodial parent's request for custody. (In re Isayah C. (2004) 118 Cal.App.4th 684, 696; In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) Clear and convincing evidence requires a high probability of proof, meaning the evidence is so apparent that there can be no substantial doubt of the fact established. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) Section 361.2, subdivision (a), with its heightened standard of proof, effectuates the legislative preference for placement with the previously noncustodial parent. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1132.) Thus, absent clear and convincing evidence that it would be detrimental to the child to be placed with the parent, the law requires placement with that parent. (§ 361.2, subd. (a); In re Basilio T. (1992) 4 Cal.App.4th 155, 169 [parenting is a fundamental right, and is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood].)
T.S.'s counsel acknowledged that as the party opposing placement with A.T., T.S. had the burden of proving detriment.
If the court places a child with the previously noncustodial parent under section 361.2, subdivision (a), it may either: (1) grant sole legal and physical custody to the noncustodial parent and terminate jurisdiction, or (2) grant custody to the noncustodial parent, but continue its jurisdiction and provide reunification services to either the offending parent, the noncustodial parent, or both parents. (§ 361.2, subd. (b); In re Austin P., supra, 118 Cal.App.4th at p. 1131.) The court here continued its jurisdiction and provided services to both parents, a ruling not challenged by T.S. in this appeal.
When the court's finding as to detriment is challenged on appeal, we consider the record favorably to the order and determine whether there was substantial evidence from which a reasonable trier of fact could make that finding by clear and convincing evidence. (In re Luke M., supra, 107 Cal.App.4th at p. 1426; In re Austin P., supra, 118 Cal.App.4th at p. 1134.) In this regard, we may not reweigh the evidence or express an independent judgment on it. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860; In re Nada R., supra, 89 Cal.App.4th at p. 1177.) We must affirm the order even if other evidence supports a contrary finding. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
C
Here, there was no clear and convincing evidence that placing the minors with A.T. would be detrimental to them. Instead, the evidence showed A.T. was willing and able to provide the minors with a stable, appropriate home, and was committed to caring for them. DIF positively evaluated A.T.'s home for placement of the minors, noting A.T. owned his own business, was able to support the minors and had a good reputation in the community. There were schools nearby for the minors to attend. A.T. was cooperating with DIF, attending AA classes twice a week, and had located a therapist for conjoint therapy with Daisy. There was no evidence A.T. had any issues with ongoing domestic violence.
Further, the minors had lived with A.T. most of their lives, and continued to have a positive relationship with him, which was maintained through consistent, appropriate telephone calls every week. The minors enjoyed their one-week visit with A.T. in Mexico and were reluctant to leave. If the minors were placed with A.T., he was willing to facilitate visits with T.S. In the social worker's opinion, there were no protective issues preventing placement of the minors with their father. (Cf. In re Stephanie M., supra, 7 Cal.4th at pp. 302, 318 [court properly denied request to place minor with grandmother in Mexico where grandmother had no contact with minor for a year, minor had no relationship with grandmother and had negative reactions to visits with her].) The court was entitled to find the social worker credible and to give great weight to her opinion. We cannot reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Casey D., supra, 70 Cal.App.4th at p. 53.)
Nothing in the record supports T.S.'s claim of her "impending reunification" with the minors. Although T.S. was participating in services, she continued to make inappropriate statements to the minors, and was still in denial about the cause of Hector's injuries, making it unlikely that she would be able to protect the minors in the future.
In the absence of a showing of detriment, A.T. was entitled to have the minors placed with him. (§ 361.2, subd. (a).) Substantial evidence supports the court's finding that placing the minors with A.T. in Mexico would not be detrimental to the minors' safety, protection, or physical or emotional well-being. The absence of detriment necessarily supports the court's finding it was in the minors' best interests to grant the section 388 modification petition and to place them with A.T. so that the minors could obtain the stability and permanence they deserve.
II
T.S. challenges the sufficiency of the evidence to support the court's order placing the minors with A.T. at the six-month review hearing. She asserts the court failed to properly apply the detriment standard under section 366.21, subdivision (e) because A.T. did not provide proof he participated in services as required by Agency, and he made no effort to act as a parent following his deportation to Mexico.
T.S. acknowledges California Rules of Court, rule 5.708(k) requires the juvenile court to conduct an analysis of detriment under section 361.2, subdivision (a) when placing a dependent child with a noncustodial parent at a review hearing. However, in ruling on A.T.'s modification petition, the court already conducted a detriment analysis. As we previously concluded, substantial evidence supports the court's finding under section 361.2, subdivision (a), that placing the minors with A.T. in Mexico would not be detrimental to them. Under these circumstances, the court was not required to make a separate, express finding of "no detriment" under section 366.21, subdivision (e) at the six-month review hearing before placing the minors with A.T.
In any event, the record permits us to infer such a finding. (See In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84 [reviewing court may infer a finding where substantial evidence supports it].) A.T. was a nonoffending noncustodial parent who helped raise the minors until Daisy was six years old and Hector was three years old. A.T.'s home in Mexico had been positively evaluated for the minors' placement. Although A.T. had not yet begun domestic violence treatment, he was willing to participate in services recommended by Agency and the DIF. He was attending AA meetings, had located a therapist, and had maintained regular contact with the minors since his deportation. Thus, under both section 361.2, subdivision (a) and section 366.21, subdivision (e), there is substantial evidence to show that placing the minors with A.T. would not be detrimental to them.
DISPOSITION
The orders are affirmed.
HALLER, J. WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.